Kingsport Press

National Labor Relations Board - Board Decisions

Apr 24, 1984

269 N.L.R.B. 1150 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kingsport Press and James Earl Ball. Case 10-CA-
18902
24 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 October 1983 Administrative Law Judge
William N. Cates issued the attached decision. The
Respondent filed exceptions and a supporting
brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions3 and to adopt the recommended Order
as modified.
The Respondent excepts, inter alia, to the judge's
recommended remedy which provides that the Re-
spondent offer Ball reinstatement. The Respondent
argues that Ball's derogatory and profane remarks
about his supervisor at a management-employee
meeting and Ball's alleged threats made on the life
of that supervisor rendered him unfit for further
employment with the Respondent. In adopting the
judge's remedy, we note particularly his conclu-
sion, which the record supports, that Ball's conduct
was no better or worse than any other employee's
conduct at the meeting and that Johnson seized on
Ball's comments as a convenient excuse to rid him-
self of an employee whose protected concerted ac-
tivities had become an annoyance to him. Thus, the
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings. Additionally, we are satisfied that the Respondent's conten-
tions that the judge was biased are without merit. There is nothing in the
record to suggest that his conduct at the hearing, his resolutions of credi-
bility, his rulings, or the inferences he drew were affected by any bias or
prejudice.
3 We adopt the judge's conclusion that the Respondent violated Sec.
8(aXl) of the Act by discharging employee Ball for protected concerted
activity which he engaged in with or on the authority of other employ-
ees. See Meyers Industries, 268 NLRB 493 (1984). Such activity included
filing grievances with other employees or assisting other employees in
filing grievances, preparing and circulating petitions, and presenting the
voluntary layoff question, on behalf of himself and others, at the 10 Sep-
tember 1982 meeting with management which precipitated his discharge.
We also adopt the judge's conclusion that the Respondent has not estab-
lished that it would have discharged Ball even in the absence of the
above conduct. In view of our conclusion that the Respondent violated
Sec. 8(aXI) of the Act by discharging Ball, we find it unnecessary to pass
on the judge's conclusion that Ball's discharge violated Sec. 8(aX3) and
we shall modify the judge's recommended Order accordingly.
269 NLRB No. 195
Respondent has permitted other employees to
engage in such conduct without discipline and it
cannot hold Ball to a different standard simply be-
cause of his protected concerted activity. As the
Board stated in Holiday Inn of America of San Ber-
nadino, 212 NLRB 280 (1974):
We note that nothing in this decision should
be interpreted to preclude the Respondent
from specifying, for the future, reasonable
rules of conduct applicable to all employees or
from enforcing such rules in a nondiscrimina-
tory manner. We add this admittedly some-
what gratuitous comment because we wish to
be sure that neither the discriminatee here nor
any other employee could construe this deci-
sion as some kind of Federal license to engage
in the kind of conduct here involved. On the
other hand any employer who freely tolerates
such conduct may not suddenly find it offen-
sive only when committed by an employee
who exercises his rights to engage in concert-
ed activity.
Additionally, we adopt the judge's finding that the
comment Ball made as he was being escorted from
the plant was too ambiguous to constitute a threat.
We also note that the judge discredited testimony
that Ball had previously made serious threats on
the life of the supervisor, and that the judge found
that the alleged threats were not mentioned as a
reason for Ball's termination in his termination
letter or in the statement of position given to the
Regional Office over 2 months after Ball's termina-
tion. In adopting the judge's decision that Ball was
discharged in violation of Section 8(a)(1), we em-
phasize that we are not addressing a case where an
employee made profane comments which the em-
ployer did not tolerate from other employees nor a
case where an employee who was discharged for
his protected concerted activity subsequently
threatened the life of a supervisor.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Kingsport Press, Kingsport, Tennessee,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph l(a) and re-
letter the subsequent paragraphs.
"(a) Discharging and thereafter failing and refus-
ing to reinstate its employees because they have en-
gaged in protected concerted activities with other
employees for the purposes of collective bargaining
and other mutual aid and protection."
1150
KINGSPORT PRESS
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
Accordingly, we give you these assurances:
WE WILL NOT discharge employees because they
engage in concerted activities with other employ-
ees for the purposes of collective bargaining and
other mutual aid and protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer James Earl Ball immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify James Earl Ball that we have
removed from our files any reference to his Sep-
tember 1982 discharge and that the discharge will
not be used against him in any way.
KINGSPORT PRESS
DECISION
STATEMENT OF THE CASE
WILLIAMS N. CATES, Administrative Law Judge. This
matter was tried before me on June 13-16, 1983, in
Kingsport, Tennessee. The hearing was held pursuant to
a complaint and notice of hearing issued by the Acting
Regional Director for Region 10 of the National Labor
Relations Board, herein the Board, on March 17, 1983,
and is based on a charge which was filed by James Earl
Ball, an individual, herein Ball, on January 17, 1983. The
complaint in substance alleges that Kingsport Press,
herein Respondent, discharged Ball on or about Septem-
ber 10, 1982, and thereafter failed and refused to reinstate
him because he engaged in concerted activities with
other employees for the purposes of collective bargain-
ing and other mutual aid and protection, and because of
his membership in and activities on behalf of United
Steelworkers of America, AFL-CIO, herein the Union,
and that his discharge violated Section 8(aXl) and (3) of
the National Labor Relations Act, herein Act. The issues
herein were joined by Respondent's answer filed with
the Board on March 28, 1983, wherein it denied the
commission of the alleged unfair labor practices.
On the entire record made in this proceeding, includ-
ing my observation of each witness who testified herein,
and after due consideration of briefs filed by the General
Counsel and counsel for Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a Tennessee
corporation, maintained an office and place of business at
Kingsport, Tennessee, where it engaged in the manufac-
ture of books and other printed material. During the year
preceding the issuance of the complaint and notice of
hearing, Respondent, in the course and conduct of its
business, sold and shipped from its Kingsport, Tennessee
facility finished products valued in excess of $50,000 di-
rectly to customers located outside the State of Tennes-
see.
It is admitted, and I find, that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. LABOR ORGANIZATION
The complaint alleges, it is admitted, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Although most of the critical facts of the instant case
arose at, or were in some manner related to, a meeting
that took place on September 10, 1982,1 some back-
ground of the labor relations history at Respondent is
necessary in order to understand the events of September
10.
Respondent has a long history of labor relations dating
back to the time when it recognized a number of unions
for various of its employees in 1935. Until 1963, there
were five separate bargaining units in existence at Re-
spondent's Kingsport, Tennessee facilities. In 1963, the
number of bargaining units increased to eight, and also in
that same year an economic strike was commenced in-
I All dates herein are 1982 unless otherwise indicated.
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volving the various unions. That situation continued until
1967 when all of the unions were defeated in Board-con-
ducted elections. Respondent has been nonunion since
1967.
There was a union campaign at Respondent in 1977 in-
volving the Teamsters Union. The Teamsters Union was
rejected in a Board-conducted election that was held on
October 27, 1977, in Case 10-RC-11217. The United
Steelworkers of America, AFL-CIO, conducted a union
campaign at Respondent's facilities in 1979. The cam-
paign culminated in a Board-conducted election in Case
10-RC-11676 on April 26, 1979. There were approxi-
mately 2500 eligible voters in the 1979 election of which
1182 voted for and 1170 against the Union with 82 chal-
lenged and 8 void ballots. The Board issued "A Certifi-
cate of Results of Election" on July 17, 1980.
B. Issues
The issues herein are clearly drawn and are whether
Ball erfgaged in any union or protected concerted activi-
ties, and whether he was discharged for his participation
in any such activities. If it is found that Ball was dis-
charged for having engaged in union and/or concerted
activities, a secondary issue arises as to whether he en-
gaged in any conduct that would necessitate his being
denied reinstatement.
C. Positions of the Parties
The General Counsel contends that Ball engaged in
numerous activities on behalf of the Union in its most
recent campaign at Respondent. The General Counsel
contends that even though there was a lapse of time be-
tween the union campaign and the discharge of Ball, Re-
spondent still harbored animus toward the Union in gen-
eral and Ball in particular, and that his prior union activi-
ty was part of the reason for his discharge. The General
Counsel also contends that Ball engaged in numerous ac-
tivities that constituted protected conduct of a concerted
nature and that because of those activities, Respondent
considered Ball to be an agitator of labor unrest and dis-
charged him. The General Counsel contends that Re-
spondent indicated to Ball a few days before he was ter-
minated that his protected concerted activities would not
be tolerated. The General Counsel contended the con-
duct Ball engaged in on September 10 was protected in
that Ball was merely voicing matters of concern regard-
ing working conditions applicable not only to himself but
also to his fellow employees, and that he spoke on behalf
of his fellow employees at the meeting. the General
Counsel contends that any comments Ball may have
made after he was asked to leave the September 10 meet-
ing were provoked by his discharge and did not consti-
tute a threat of violence in any manner. The General
Counsel also contends that Ball did not engaged in any
conduct nor did he make any comments that would war-
rant his being denied reinstatement.
Respondent contends that Ball was discharge for two
reasons neither of which was protected by the Act. Re-
spondent contends one of the reasons for Ball's discharge
was his insubordination and misconduct at an employee
meeting on September 10. Respondent contends the
other reason for Ball's discharge was that he made
threats against the life of one of its supervisors prior to
and after the September 10 employee meeting. Respond-
ent further contends that the activities of Ball at the Sep-
tember 10 meeting were not protected concerted activi-
ties because they were of a personal rather than mutual
nature. Respondent contends Ball's comments were an
attempt by him to "vent his spleen" on management, and
that he had no specific purpose in mind regarding his
conduct at the meeting nor did his actions look to any
group action, but were instead merely a showing of
anger and griping on his part directed at management.
Respondent further contends it had no knowledge of any
union activity on the part of Ball. Respondent also con-
tends it had no knowledge that any of Ball's activities
were on behalf of anyone other than himself. Respondent
contends that Ball's insubordination at the employee
meeting on September 10 was a conscious, premediated,
personal, degrading, vulgar attack on one of its supervi-
sors.
Respondent contends that even if a violation of the
Act should be found, Ball's misconduct has rendered him
unfit for futher employment at Respondent.
For the reasons I shall set forth, I find that Respond-
ent violated Section 8(a)(l) and (3) of the Act when it
discharged Ball on September 10.
D. The Facts and Credibility Resolutions
Ball commenced working for Respondent in 1969
while he was still in high school, and he continued his
employment there until he was terminated on September
10. Ball had one break in his employment history and
that was during the time he served a tour of duty with
the military. Ball worked in the casemaking department
first as a helper then as a expediter. Ball served a 5-year
apprenticeship and became a journeyman operator. Prior
to his discharge and because of economic considerations,
Ball was reduced from an operator to an extra operator
and then to a relief operator. At the time of his dis-
charge, Ball was working as a relief operator. During
Ball's entire work history, he never received any repri-
mands or warnings.
It is undisputed that Ball participated in the most
recent (1979) union campaign at Respondent. Ball served
as an in-plant organizer for the Union and wore a union
pin and hat. Ball had stickers for the Union on his tool-
box, handbilled for the Union, and sought to have his
fellow employees sign union authorization cards. I credit
Ball's uncontradicted testimony that on one occasion
during the 1979 campaign, he asked Super Finish De-
partment Supervisor Leland Sanders if he could raise a
window because it was extremely hot. Sanders told Ball
it would mess up the women employees' hair and, as
such, he would not allow him to raise the window, but
told him if he was as hot as he said he was, he could
"take that damn union hat off and [he] would probably
cool down."
Ball testified without contradiction that Supervisor
Jack Sproles rated him down on his employee evaluation
after the 1979 union election. Ball asked Sproles why,
and Sproles told him it was because of his past activities.
1152
KINGSPORT PRESS
Leonard Jaynes likewise testified, and I also credit his
uncontradicted testimony, that following the 1979 union
campaign, he was not satisfied with his employee evalua-
tion, and because he was not, he spoke with Supervisor
Sproles aobut it. Jaynes told Sproles his evaluation
should have been higher. Sproles agreed with him, but
told him his evaluation was as high as he could give him
because he had supported the Union. Jayne told Sproles
that Respondent was not supposed to hold that against
him. Sproles responded to Jaynes that it did. Jaynes
stated he later complained to Personnel Superintendent
Tony Poe, and he was reevaluated by a different supervi-
sor. Earle Grizzle, who was called as a witness by Re-
spondent, testified that Supervisor Sproles told him he
could not give him a better employee evaluation because
he had struck his nose in the Union when it was there.
Grizzle testified he was later reevaluated to his satisfac-
tion by another supervisor.
According to Ball, there was yet another instance
when the Union was discussed with him by management.
That incident, which according to Ball resulted from a
particular grievance being filed, will be discussed else-
where in this decision along with various other griev-
ances Ball filed.
It is undisputed (see R. Exhs. 14(a) through 14(r)) that
Ball filed a number of written grievances 2 pursuant to
Respondent's grievance complaint procedure. Addition-
ally, Ball testified regarding grievances he filed for
which no written correspondence was made available at
the trial. These oral grievances will be discussed after
the documented grievances. It is necessary with respect
to the issue of concerted protected activity to examine
the grievances in order to determine if they generally
pertained to Ball alone or if they related to all employees
situated in like positions as Ball.
Ball had a meeting with Respondent's executive vice
president, Robert E. McNeilly Jr., on March 25, 1980, as
documented by McNeilly's April 8 letter to Ball. The
meeting was held so that Ball could express some work-
related matters to McNeilly relating to layoffs, cutbacks,
manning of shifts, rates to be paid different job classifica-
tions, a procedure for sharing work between senior and
less senior employees, and cross-training of employees.
Ball's suggestion with respect to cross-training of em-
ployees was adopted by McNeilly. (R. Exh. 14(b).) Ball's
complaints clearly applied to employees other than him-
self.
On April 13, 1981, Ball filed a grievance with Re-
spondent regarding his being reclassified to the position
of extra operator. Ball also grieved the fact that such
downward reclassifications resulted in a loss of seniority,
the right to take voluntary layoffs, a loss of vacation
time, and military pay, and impacted upon life insurance
(R. Exh. 14(c)). Ball's grievance was answered by Re-
spondent Sullivan Street Plant Manager William F. John-
son, in writing on May 11, 1981. Johnson discussed in his
letter with Ball how reductions impacted on employees
and stated he understood their concerns and referred the
2 Throughout the trial and in various of the exhibits, Respondent's
complaint and suggestion procedure was referred to as a grievance pro-
cedure. I have adopted that same terminology in this decision.
grievance to the next step in Respondent's complaint
process. Again, Ball's grievance applied to employees
other than himself.
Respondent's vice president of operations, James W.
Bowery, responded to a grievance of employees Mike
West and James Ball on June 25, 1981, regarding their
complaints related to operators being cut back to helpers.
Bowery informed West and Ball that he was in agree-
ment with their position regarding the length of time it
took to become a journeyman operator on certain types
of machines. Bowery referred to higher management the
question raised by West and Ball regarding whether an
employee who had been cut back to a helper's base rate
could purchase more than one and a half times their base
pay in life insurance (R. Exh. 14(e)). Respondent con-
cedes that this particular action constituted concerted
protected activity on the part of the two employees in-
volved.
Respondent's Exhibit 14(g) indicates Ball presented
Executive Vice President McNeilly with a grievance in
July 1981. As a result of McNeilly's review regarding
Ball's complaint, it was discovered that a policy change
regarding the status of cut back operators was being
made at that time. Respondent's overall policy change
covered Ball's problem according to McNeilly.
Ball filed a suggestion and a complaint (R. Exh. 14(h))
on September 28, 1981. In the suggestion, Ball pointed
out a number of ways Respondent could improve its uti-
lization of the casemaking machine parts. Ball's sugges-
tions were adopted and implemented by Covered Mar.u-
facturing Superintendent Jim Johnson, and he so indicat-
ed that fact to Ball in a memorandum dated October 13,
1981 (R. Exh. 14(i)). Ball's complaint filed on the same
date dealt with his relationship to Casemaking Depart-
ment Supervisor Claude Akers. Ball claimed Akers had
verbally assaulted him.3 Plant Manager Johnson re-
sponded in writing on November 9, 1981, to Ball's com-
plaint regarding the verbal assault. In his response, John-
son stated he had been unable to either confirm or deny
Ball's allegations against Akers. Ball's concerns regarding
utilization of machine parts clearly pertained to all em-
ployees.
Ball filed a grievance on December 12, 1981, pertain-
ing to the hardships placed on journeymen operators
who were reclassified to the position of extra operators,
and he asked in his grievance if there was anyway such
hardships could be avoided. Ball also complained about
his own status in the grievance (R. Exh. 14(k)). It ap-
pears that Respondent addressed these complaints of Ball
in a letter to him dated February 1. The letter was
signed by Vice President of Industrial Relations Charles
Doty and Executive Vice President McNeilly. Respond-
ent referred to its overally policies in its response to Ball,
I Ball testified, and I credit his testimony, that Akers told him he had
some letters that Ball had written to management and that if he thought
he was going to get Akers relieved from his position, he was an "us-
shole." Ball asked Akers what he was doing with the letters and state-
ments; Akers told Ball it was none of his "goddam business." Ball com-
plained of the cursing to Supervisor Sproles, and Sproles asked him,
"what in the hell am I suppose to do." Ball then proceeded to Personnel
Superintendent Poe's office and complained to him about the cursing.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stated its overall policies would apply to Ball. The
response stated in part:
We are well aware of the impact that such a down-
ward adjustment has on individual employees who
through no fault of their own find themselves in
such a position [being cut back from operator to
relief operator] especially in such a case as yours
[Ball's] where you have operated with competence
for a number of years. [R. Exh. 14(n).]
It is clear that this grievance of Ball applied to employ-
ees other than himself.
Ball filed a grievance on January 15 in which he in-
quired how Respondent justified different rates of pay
for individuals performing the same jobs on the same ma-
chines producing the same products, but at two separate
locations of Respondent (R. Exh. 14(1)). Plant Manager
Johnson, in a memorandum dated January 22, forwarded
Ball's complaint to Vice President of Operations Bowery
because it pertained to rates of pay for casemakers in
two different plants of Respondent (R. Exh. 14(m)).
Bowery addressed Ball's January 15 complaint in a letter
to him dated March 16 (R. Exh. 14(o)). Bowery ex-
plained Respondent's rates for casemakers and he also
explained how slack work impacted on such situations.
Bowery pointed out that pay fell under Respondent's
wide pay policies. Again, Ball's complaint was greater
than and pertained to more than one employee.
Ball, along with 16 other employees, signed a griev-
ance on July 8 complaining about certain work schedul-
ing that had taken place in the casemaking department.
Ball was the first employee to sign the grievance, and by
comparing the July 8 grievance to the others prepared
by Ball, I am persuaded the entire handwritten portion
of the July 8 grievance was prepared by him. Covered
Manufacturing Superintendent Johnson responded to the
grievance in writing on July 17, and explained the neces-
sity for the scheduling that the employees complained
about (R. Exh. 14(q)). The grievance was appealed fur-
ther on October 22. Plant Manager Johnson responded in
writing to the appeal after Ball was discharged (R. Exh.
14(r)). It is without question that this grievance applied
to employees other than Ball.
Ball credibly testified without contradiction that
during the last 6 months of his employment, Supervisor
Akers accused him of being a "trouble-making employ-
ee" and "a disgruntled employee" and told him "hey
Ball, the door swings both ways, you know, don't let it
hit you in the ass on the way out."
In addition to filing grievances, Ball credibly testified
he also circulated certain petitions at Respondent. Ball
testified that in 1981 the employees wanted to know who
was going to be on a wage evaluation board that would
set base wage rates for their department. The employees
wanted some input into the decision-making process. Ball
testified that he, along with a group of his fellow em-
ployees, met in the breakroom at the plant and discussed
the matter, and it was suggested that he write up a peti-
tion to see if the employees could meet with manage-
ment on the matter. Ball prepared such a petition and
was the first one to sign it. Ball testified Covered Manu-
facturing Superintendent Johnson would not meet with
the employees as a group but told them that one individ-
ual could file a complaint on behalf of the entire depart-
ment. Ball testified, without contradiction, that he filed a
complaint regarding Respondent's failure to allow the
employees to meet with the wage evaluation board, and,
in filing the complaint, he alleged it was a violation of
Respondent's open door policy. Ball stated that thereaf-
ter a number of employees, including himself, was al-
lowed to meet with Johnson about the matter. Ball's ac-
tions again appear to be on behalf of employees other
then himself.
Ball also credibly testified that he and certain of his
fellow employees discussed the fact that they felt one of
their supervisors (Sproles) was not being treated fairly
by management. Ball prepared and circulated a petition
in June requesting a meeting with Plant Manager John-
son about the matter. Ball gave the petition to Covered
Manufacturing Superintendent Johnson. Ball and others
met with Plant Manager Johnson and told him they felt
that Covered Manufacturing Superintendent Johnson and
Casemaking Department Supervisor Akers were being
unfair to Supervisor Sproles because of his relationship
with the employees. Ball also told Plant Manager John-
son that Superintendent Johnson and Supervisor Akers
were subjecting Ball to certain accusations, namely, that
he was a "disgruntled employee," "an agitator of union
activities," and suggested that he find employment else-
where.
Ball testified he filed a number of grievances in the
summer of 1982. Ball credibly testified that with respect
to most of the grievances or complaints prepared by him,
that he reduced them to writing because he had been
told if he felt the matters were so "damn important" to
write them down with the group. Ball testified most
grievances he was involved with were written up in the
breakroom at Respondent. Ball testified he would ask
employee Beverly Wright to help him with his grammar
and spelling on the grievances because she had previous-
ly been a secretary and was good at grammar and spell-
ing.
Ball testified he had a meeting with Superintendent
Johnson on July 15 regarding his reevaluation for wage
classification and, in the meeting, Johnson told him he
was a disgruntled employee. Superintendent Johnson also
told Ball:
James, he said, I am getting tired of you, you know,
constantly, you know, at Union, you know, agitat-
ing you know, agitating this unrest in my depart-
ment-this labor unrest in my department, it seems
that you're always trying to undermind my author-
ity, and don't you understand that I run this depart-
ment, I'm here, and I'm going to be here until hell
freezes over, and you're going to, you know, abide
by what I say, and that is it.
Ball told Johnson that as long as he did his job, he
thought he had a right to express his opinion. According
to Ball, Johnson, responded that he could express his
opinion but "by God, you know, he was getting tired of
1154
KINGSPORT PRESS
me agitating other people." Johnson told Ball if he did
not like it, he could find work elsewhere.
Johnson did not deny any specific meetings with Ball
but simply denied over discussing the Union with him at
any time. I discredit Johnson's denial. After observing
Johnson testify, I am persuaded that any place his testi-
mony is contradicted or not corroborated that it should
be discredited. A number of factors persuade me that my
observations regarding Johnson's testimony are correct.
For example, I find unbelievable Johnson's testimony
that he never saw Ball wear any union insignia in the
plant. Respondent, in its brief, concedes that Ball wore
union insignia on his person and his toolbox. Other man-
agement representatives (Poe and Akers) acknowledged
that Ball wore union insignia. I find even less believable
Johnson's testimony that he did not oppose the Union in
the latest union campaign and did not care how the em-
ployees voted. Further, I do not believe Johnson's testi-
mony that even though the personnel superintendent had
asked supervisors to provide him with a weekly poll of
how they felt the employees would vote during the
Union's latest campaign, that he, Johnson, did not par-
ticipate in that activity and this his supervisors reported
directly to Personnel Superintendent Poe instead of
coming through him with their reports of union strength
at Respondent. These are just some of the examples that
persuade me that Johnson's testimony is unworthy of
belief.
Ball prepared a grievance on July 18 pertaining to a
reduction in the number of supervisors at Respondent's
facility. Ball testified he prepared the grievance after
meeting and discussing the matter with his fellow em-
ployees in the breakroom. It is undenied Ball gave the
grievance to Supervisor Sproles who responded by
saying, "God damn, what in the hell am I going to do if
I get cut back." Sproles them made a "beeline" for the
office. 4
I credit Ball's testimony that he met with Covered
Manufacturing Superintendent Johnson on July 21, re-
garding the grievance pertaining to a reduction in the
number of supervisors. Johnson asked Ball to explain the
"damn" suggestion. Ball explained that Respondent
could combine two different departments and use only
one foreman and that the one foreman would be super-
vising less than a normal work force. After a loud pause,
Johnson replied:
I don't know where in the hell you get off, you
know, trying to tell me how to run this damn de-
partment, I'm getting sick and tired of you, and
them others, Union or not, trying to tell me how to
run this damn department. And, he said, James, by
God if you, you know, if you don't like it, I wished
the hell you'd go somewhere else.
I credit the undenied testimony of employee J. C. Russell that Super-
visor Sproles told him when they were discussing reduction in supervi-
sors after Ball had left the discussion that all Ball ever did was "bitch,
bitch, bitch . .. that's all he ever does . . . that's the biggest trouble
maker we've got down here in casemaking . . it if wasn't for him . . .
things would run a whole lot smoother if he was gone."
Ball told Johnson he had worked for Respondent for
14 years and was not interested in going elsewhere, but
that if Respondent was really interested in saving money,
no one, including supervisors, should be excluded from
cost-saving measures. Johnson then told Ball he did not
gave a "damn" what he thought and if he did not like
the "damn" working situation to go elsewhere. Johnson
than told Ball he was "the biggest damn Union agitator
he had ever seen in his damn life." I credit Ball's testi-
mony as outlined above. As indicated elsewhere in this
decision, I do not credit Johnson's testimony that he
never discussed the Union with Ball.
I credit Ball's uncontradicted testimony that he spoke
with Personnel Superintendent Poe in Poe's office on
August 29 regarding his treatment by Superintendent
Johnson. Ball told Poe that Johnson was biased and
paranoid toward him and accused him of being a dis-
gruntled employee and a troublemaker. Ball informed
Poe he did not know why Johnson made the accusations
against him, that he did not know if Johnson still held
his union activities against him or if it was because he
filed so many grievances. Ball pointed out to Poe that a
number of Johnson's decisions on his grievances had
been overturned by higher management, one of which
resulted in Ball's receiving backpay. Ball told Poe that
he had requested a transfer out of Johnson's department,
but had never received any feedback on his request. 6
Ball told Poe he had also made a number of what he
thought were good suggestions to Johnson about the de-
partment, but he had not received any feedback from
Johnson on his suggestions. Ball also told Poe he did not
want to file any more grievances with Johnson. Poe told
Ball that if he had any other grievances to file, he could
file them directly with him.
Ball testified that, after his meeting with Poe, Johnson
called him into this office on September 7 for a meeting
and told him the meeting was in response to Ball's meet-
ing with Poe pr other management officials. Johnson
then went systematically over a number of suggestions
with Ball that Ball had made. Johnson told Ball what
Respondent's position was on a number of the sugges-
tions he had made. Johnson told Ball his requested trans-
fer could not come about because of a cutback in work,
but if a position became available he would let him
know. Johnson told Ball that would be all. As Ball was
leaving Johnson's office, Johnson told him, "James, he
said . . . if you keep this up . . . its either you or me
going." Ball was discharged 3 days later.
Johnson did not specifically deny the conversation
Ball attributed to him as having taken place 3 days
before Ball was terminated. I credit Ball's testimony re-
garding the September 7 conversation he had with John-
son.
The next significant event involving Ball at Respond-
ent took place on September 10. It is undisputed that an
employee meeting involving the second-shift casemaking
department employees took place in the afternoon hours
on September 10. Supervisor Akers testified that just
s Poe testified that he had not recommended Ball for transfer because
of Ball's attitude toward Respondent.
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pior to the employee meeting Ball asked him if Superin-
tendent Johnson would be present for the meeting. Akers
told Ball he was not sure whether Johnson would be
present or not. Akers testified Ball told him that he
wanted the "son-of-a-bitch" to be there. 6 Ball denied
making any such remark. Ball, by his superior demeanor,
impressed me as a witness who was making every effort
to tell the truth. Ball sometimes answered more than was
asked of him when questioned at the trial, and he had to
be admonished in that regard. Nevertheless, I do not find
that to detract from his overall truthfulness. Although
his persistence with respect to working conditions may
have made him a thorn in Respondent's side, such did
not lessen his desire to testify truthfully. As will be noted
elsewhere in this decision, Ball may have been the loud-
est and longest speaker at the September 10 meeting, but
such does not detract from, but rather, under the circum-
stances of this case, enhances his credibility. In contrast
to Ball, I did not generally find Akers to be a credible
witness. Akers' credibility will be discussed more fully at
that portion of this decision dealing with threats that Ball
allegedly made. Accordingly, I find that Ball did not say
prior to the September 10 meeting that he wanted that
"son-of-a-bitch [Johnson]" to be present. I discredit any
testimony to the contrary.
Ball testified that the employees had heard on Septem-
ber 8 there would be a meeting on September 10 regard-
ing changes that were to take place in their department.
Ball, along with other of his fellow employees, met in
the breakroom at the plant prior to the start of their shift
on September 10 and discussed reductions in force, lay-
offs, transfers, wage reductions, and terminations. In ad-
dition to Ball, J. C. Russell, Charles Jarrett, Earle Griz-
zle, and Mike Salyers were present along with others at
the meeting prior to the start of the shift on September
10. Ball testified they discussed why the older operators
could not take voluntary layoff instead of making the
helpers take forced layoff. Ball indicated to the group he
would raise that question at the work shift meeting. The
other employees present at the meeting were in agree-
ment with Ball about his raising that matter at the meet-
ing.7 According to Ball, whose testimony I credit, other
employees talked about questions they were going to ask
at the work shift meeting. Ball stated that Supervisor
Sproles was present for part of the time that the break-
room meeting was going on.
The meeting for the second-shift employees was held
immediately after the shift started on September 10. In
addition to Ball, employees Earle Grizzle, Kenneth
Bourbon, Chris Smith, Marvel Watterson, Leonard
Jaynes, Vonnnie DeBord, Paul Gillenwater, Danny Dav-
e Employee Vonnie DeBord, who was called as a witness by Respond-
ent, corroborated Akers' testimony.
I Employee Leonard R. Jaynes testified that Ball helped others in
wording, writing, and preparing grievances that were discussed from
time to time in the breakroom. Jaynes stated others sought Ball out to
help them to prepare their grievances. J. C. Russell testified that Ball
generally acted more or less as spokesperson for the rest of the employ-
ees. Russell testified, "[l]t seems like they would always wind up sticking
it on James [Ball] to take it in there to [Superintendent] Jim Johnson."
Russell testified everyone looked up to Ball in this respect. Employee
Grizzle stated Ball was the one who had the nerve to talk up to manage-
ment about concerns of the employees.
enport, J. C. Russell, Johnny Lane, Frank Kincaid,
Robert Ashworth, Bernice Chapman, Linda Hurd, Bev-
erly Wright, Mike Salyers, Charles Jarrett, and Doug
Rose attended the meeting. Supervisor Akers and Super-
intendent Johnson were present for Respondent at the
meeting. Each of the above-listed individuals testified at
the trial except employees Rose, Jarrett, Salyer, and
Wright. Each of the individuals that testified regarding
the meeting gave a somewhat different version of what
was said and by whom. Some of the differences were
slight while others were extreme. Because of so many
different versions of what was said and by whom, I have
very carefully weighed the testimony, and my ultimate
choices in making findings of fact are based on my obser-
vation of the demeanor of the witnesses and the weight
of the respective evidence provided by them, considered
in conjunction with established or admitted facts, inher-
ent probabilities, and reasonable inferences which may be
drawn from the record as a whole. With respect to the
testimony, I have borne in mind the tendency of wit-
nesses in general to testify as to their impressions or in-
terpretations of what was said rather than attempting to
give a verbatim account of matters. Further, I am mind-
ful that even in the case of persons testifying about their
own remarks, the persons may well tend to express what
they said or intended to say in clearer or more implicit
language than they actually used in their comments or
discussions. As to any witness having testified in contra-
diction of the findings herein, their testimony has been
discredited either as having been in conflict with the tes-
timony of credible witnesses or because it was in and of
itself unworthy of belief. All testimony has been re-
viewed and weighed in light of the entire record.
Ball testified he entered the meeting and sat at the
same table with Supervisor Akers and Superintendent
Johnson. Akers opened the meeting by saying he was
sorry the changes had to happen, but there was not a
"damn" thing he could do about it. Akers then informed
the employees that were involved of whatever action-
layoff, transfer, reassignment-that pertained to them.6
Superintendent Johnson then took over the meeting
and opened it up for any discussions regarding the poli-
cies behind the changes that had been announced. Em-
ployee Mike Salyers asked about his being reduced from
a driver to a helper. Salyers stated to Superintendent
Johnson, "[M]other fucker... now that you don't have
to worry about the Union you're treating us like shit." A
number of those present said, "[H]ell yes" and "[D]amn
right" at that time.9 Ball credibly testified that employee
Charles Jarrett spoke up at that point and said, "[W]ell,
hell, Jim [Superintendent Johnson], you know yourself
that this department was one of the most outspoken de-
' When Akers came to Ball's name on the roster, he informed Ball that
his status would remain unchanged. All parties agreed that Ball's status
was not affected by the changes announced at the meeting.
9 I credit Ball's testimony with respect to the comments he attributed
to Salyers. Ball's testimony in this regard was in all essential parts cor-
roborated by employees Jaynes, Russell, and DeBord. Employees Kin-
caid, Watterson, Hurd, and Gillianwater stated that Salyers was upset be-
cause he was being cut back from one position to another. Superintend-
ent Johnson acknowledged that Salyers asked about and was quite upset
with his reduction.
1156
KINGSPORT PRESS
partments in the whole damn Union campaign, and it
looks like you're finally getting even." 0° There were
outbursts at that point of "hell yes" and "damn right."
Leonard Jaynes then spoke up and said, "[Y]eah, they're
finally getting even all right, they're shafting us
again."1I According to Ball, employee Grizzle asked Su-
perintendent Johnson about changes that had been made
on the casemaking machines. Grizzle asked Johnson how
they were going to be able to keep up production with
the changes that had been made and with the reductions
in help. Johnson stated production would be maintained
or Respondent would find someone who could. Accord-
ing to Ball, Grizzle told Johnson, "Well, hell, I'd like to
see you do it."12 Ball testified Johnson again took over
the meeting and stated, "[Y]ou people are just going to
have to learn to live with this cut-back, and these lay-
offs . . . hell, its just damn part of life, why hell, I don't
even know if I'm going to be here tomorrow." A
number of those present spoke up simultaneously, with
Mike Salyers saying, "[H]ell, we'll throw a damn party";
Bevery Wright stated she would bake a cake; Charles
Jarrett stated it would be the best thing that ever hap-
pened to Respondent; and Leonard Jaynes said he would
say "amen" to that.'3 Ball testified he commented that
he would not be sorry to see Superintendent Johnson go.
Johnson told Ball he was "glad to see [him] so openly
honest."14 Ball, Jaynes, and Russell credibly testified ad-
ditional questions were asked at this point in the meeting
regarding what was taking place at Respondent. Ball
spoke up and characterized the situation as "this friggin
mess"1 5 and then asked Johnson why some of the extras
O1 I specifically discredit Superintendent Johnson's statement that Jar-
rett did not say a word at the meeting. As elaborated on elsewhere in this
decision, Johnson did not impress me as a reliable or trustworthy witness.
" Jaynes acknowledged making the comment attributed to him by
Ball and, as such, I credit Ball's testimony that it was Jaynes who made
the comment about being shafted, and I discredit any testimony to the
contrary.
i' I credit Ball's testimony which was corroborated by Jaynes, Russell,
DeBord, and Grizzle himself.
'" Ball's testimony in this respect was corroborated by that of employ-
ees Jaynes, Russell, Kincaid, Gillianwater, and DeBord. Employee Griz-
zle recalled Wrights' statement about baking a cake and employee Lane
recalled Johnson saying he might not be there the next week. I give no
credence to Supervisor Akers' statement that he did not recall any em-
ployees saying they would have a party regarding Superintendent John-
son's indicating he might not have a job there the next week. Akers did
concede that Johnson made the statement that he might not have a job
with Respondent the next week.
" Ball's testimony was corroborated by Russell. I discredit Superin-
tendent Johnson's testimony that Ball said he did not see why Respond-
ent did not fire Johnson. I do so because I am persuaded Superintendent
Johnson either misunderstood Ball's statement about not being sorry to
see him go or Johnson deliberately misspoke the truth in his testimony at
the trial. I am persuaded that Lane and Smith likewise misunderstood or
misspoke the truth when they testified that Ball said he wished Superin-
tendent Johnson would be removed or moved out. I also discredit John-
son's and Akers' testimony that Ball said Johnson had been shafting him
ever since he had been in the department. I discredit Bourbon's testimony
that it was Ball who mentioned being shafted beause Bourbon was re-
sponding to very leading questions by Respondent's counsel. The cred-
ited evidence establishes that it was employee Jayne who mentioned
being shafted at the meeting instead of Ball.
" I am fully persuaded that Ball addressed himself to "this friggin
mess" and not, as reflected in testimony that I discredit, that he men-
tioned that management was "friggin" either secretaries or CSR employ-
ees on the side or that Superintendent Johnson was "friggin" someone or
was a "fucking bastard."
and journeymen operators were not allowed to take vol-
untary layoffs instead of sending the helpers out of the
department. Johnson told Ball it could not be done; Ball
responded it was "inept" or "poor" management. John-
son told Ball he was out of order and to either calm
down or leave the meeting. Ball thanked Superintendent
Johnson, placed his chair under the table, and returned
to his work station. 'I
Employee Russell testified certain employees looked
up to Ball when it came to presenting their questions or
grievances to management. Russell stated that those
present at the September 10 meeting that he knew of that
looked up to Ball other than himself were Leonard
Jaynes and Charles Jarrett. Employee Jaynes testified
that, although he had not asked Ball to speak on his
behalf at the September 10 meeting, Ball was in fact
speaking for him on "a lot of the issues and policies."
It is undisputed that a few minutes after the meeting
ended Supervisor Akers came to Ball's work station and
escorted Ball to Superintendent Johnson's office. Ball
testified that, as soon as he entered Johnson's office,
Johnson told him that, because of his activities at the
meeting, he was to give his pass to Akers, and that he
was terminated. 7 Ball asked why, and Johnson told him
he would not argue with him to just turn over his pass
and be in Plant Manager Johnson's office the next week.
Akers and Ball walked from Superintendent Johnson's
office to Ball's work station where Ball obtained his tool-
box. According to Ball, Akers told him he did not have
to take his toolbox and stated, "[H]ell, I don't think any-
thing is going to come of this." Ball left his toolbox with
fellow employee Russell.'1 Akers acknowledged that
Ball did not carry his toolbox from the plant, but he did
not recall Ball speaking to Russell about it, nor did he
remember telling Ball anything about his toolbox. I
credit Ball's tesimony.
Akers testified he and Ball walked mostly in silence
out of Respondent's facility. Akers stated Ball maintained
his composure and did not act "mad or anything." Akers
testified, "James [Ball] told me that when he came back
in on Tuesday for his meeting, that . . . if he was fired,
that he wouldn't have to be walked out of the plant, that
he would have to be carried out."
Ball testified to a much different departure from the
plant. Ball testified that, as he was leaving with Akers,
he began to realize what was happening to him and as
that realization hit him, he "started cussing a blue streak"
saying, "God damn it," "[M]other fucker," and other
ramblings. Ball stated he was still rambling on by the
time he arrived at his home. Ball testified he never made
a threat against Superintendent Johnson's life at any
time, nor did ne ever put his hands on Johnson in anger,
move toward him, or go to his home.
1' I credit Ball's testimony that during his questions with Johnson at
the meeting he used the words "damn" and "hell" but that he never at
any time asked if management was wiping their hindend or "ass" with his
earlier suggestions.
1? Johnson stated he told Ball he was only suspended and to report
back to Respondent the following week. I find it unnecessary to deter-
mine whether Johnson said terminated or suspended.
Is Russell testified Ball asked him to take care of his toolbox.
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is, in my opinion, difficult to reconcile the two ver-
sions of Ball's termination walk from the plant. This was
not an occasion where one of the witnesses could have
misunderstood or misinterpreted what the other said be-
cause one claims there was silence with a calm statement
made which he considered to be a threat, while the other
version is that the individual left the plant cursing angri-
ly. After carefully observing both Ball and Akers testify,
I have generally credited Ball's testimony, and I do so
here to the extent that he was cursing as he left Re-
spondent's facility. It is without question on the status of
this record that the casemaking department was given to
vulgar and obscene language both by the rank-and-file
employees as well as the supervisory personnel. There-
fore, it is very probable that Ball engaged in the lan-
guage he stated he did as he left the plant. It is also very
probable, and I find, that Ball said in his anger the state-
ment Akers attributed to him.
Some of Respondent's witnesses testified about other
threats they claimed Ball had made at one time or an-
other. Akers testified that employee Gillianwater told
him on one occasion at some point that Ball had said he
would blow Superintendent Johnson away. Akers stated
he told Superintendent Johnson about Gillanwater's
statement sometime between September 10 and 17 after
Ball had been discharged. Gillianwater, Respondent's
witness, testified, after specific questioning on the point,
that he never told anyone about his conversation with
Ball. Gillianwater did not know when the conversation
took place, but stated that Ball told him, "He'd blow him
away, or something like that." Gillianwater stated "I
reckon" Ball was referring to Superintendent Johnson.
Ball testified he never threatened Superintendent John-
son at any time. I find that Gillianwater, although uncer-
tain as to what was said to him by Ball, mentioned Ball's
conversation to Supervisor Akers even though he testi-
fied he never told anyone about the conversation. I am
persuaded that he mentioned something about a conver-
sation he had with Ball to Akers; otherwise, Akers
would not have known of it to tell Superintendent John-
son about it.
Superintendent Johnson testified Ball made what he
considered to be a threat some time prior to the Septem-
ber 10 meeting, but, as to how long before the meeting,
he could not be certain.' 9 Johnson testified Ball said,
"[I]f anyone took food out of his kids' mouth that he
would bring a gun in there." Johnson testified Ball made
the comment when he discussed with him his being cut
back from a regular operator to a relief operator. John-
son testified that, since Ball was an exserviceman and be-
longed to the National Guard, he knew Ball had access
to guns. According to Johnson, no one was present at
the conversation except Ball and himself. Johnson testi-
fied he did not report Ball's threat to anyone because he
did not think much of it at the time. Ball denied ever
making any threats. As set forth elsewhere in this deci-
sion, I do not credit Ball's testimony with respect to
'1 Johnson first stated he did not remember how long before the Sep-
tember 10 meeting the conversation took place, and that possibly it could
have been 8 months or so before the meeting. When pressed further for a
date, Johnson placed the conversation at approximately 6 to 8 months
before the September 10 meeting.
what he said as he left the plant on September 10. I do
not credit his testimony about this incident because he
testified he was angry, and he do not know what he had
said. Notwithstanding the fact that I do not credit Ball's
testimony about this incident, I do credit his denial with
respect to the conversation Superintendent Johnson at-
tributed to him. I credit Ball's testimony because, after
observing Johnson testify, I am persuaded he did not tell
the truth about the conversation.20
Superintendent Johnson told Personnel Superintendent
Poe on September 10 about the situation involving Ball
that had taken place at the September 10 meeting. Poe
instructed Superintendent Johnson to suspend Ball pend-
ing an investigation. Poe conducted an investigation in
which, at one time or another, he interviewed the em-
ployees that had been present at the same meeting Ball
had attended.
On September 14, Poe met with Ball in Plant Manager
Johnson's office to have Ball tell him his version of the
September 10 meeting. Poe testified Ball told him he had
spoken in a loud voice at the meeting, and he had said at
one point during the meeting he thought management
was inept. Poe testified Ball told him six or seven others
employees had also spoken up at the meeting. Ball told
Poe he thought he should not be terminated, and that he
had suffered enough at home because of comments his
wife had made. Ball told Poe he would beg for his job
back if it was necessary.
Poe testified he completed his investigation into the
matter on September 15. Poe then met with Superintend-
ent Johnson and Plant Manager Johnson, and it was de-
cided by the three of them that Ball should be dis-
charged based on his insubordinate conduct at the meet-
ing and also on the threats that he made toward Superin-
tendent Johnson. Poe and the Johnsons discussed their
decision with Vice President of Industrial Relations
Doty and Vice President of Operations Bowery on
either the afternoon of September 16 or the morning of
September 17. Doty and Bowery concurred with the de-
cision to terminate Ball.
Poe testified after the meeting with Doty and Bowery
he wrote out for Superintendent Johnson what he was to
tell Ball over the telephone when he terminated him. Poe
stated he wrote down what Superintendent Johnson was
to say because "I wanted to make sure that as far as pos-
sible . . . he told Mr. Ball what he needed to tell him,
'0 Respondent presented group leader Billy Shelton as a witness. Shel-
ton testified that, after a meeting sometime in 1981 concerning cutbacks
taking place at that time, Ball came out of a meeting with Superintendent
Johnson and, after returning to his work station where Shelton was,
stated, "[I]f that mother fuckin' son-of-a-bitch does anything to me I'll
blow his brains out." Shelton further testified: "He [Ball] did not say [Su-
perintendent] Jim Johnson; he just said that statement." Shelton testified
the first time he told anyone in management about the conversation was
on June 10, 1983. Respondent in its brief acknowledges it had no knowl-
edge of the conversation testified to by Shelton until preparation for trial
of the instant case. Ball specifically denied the statements attributed to
him by Shelton. Based on Ball's superior demeanor, I credit his testimony
that he never made the statements attributed to him by Shelton. Further-
more, if Shelton's testimony were credited, it is too uncertain that Ball
was speaking about Johnson to be considered a threat against Johnson.
Furthermore, if Shelton's testimony was credited, Respondent could not
rely on it in any manner inasmuch as it ony learned of the conversation
while preparing for the trial herein.
1158
KINGSPORT PRESS
so, I wrote . . . a termination discussion for him to
follow." Poe testified he listened in on an extension
phone as Superintendent Johnson read the termination
statement to Ball on the telephone. Both Poe and Super-
intendent Johnson acknowledged that the subject of
threats was not mentioned to Ball as a reason for his dis-
charge in that conversation.21 Poe testified he did not in-
clude the threats in the notes he prepared for Johnson to
read from because he did not want Johnson telling Ball
he was being discharged in part because of threats he
had made against Johnson. Poe testified he then wrote
Ball a two-page letter. Poe specified in the letter why
Ball was discharged. The reasons contained in the letter
for the discharge are as follows:
To confirm the conversation which Mr. Jim
Johnson, Covered Manufacturing Superintendent,
had with you on September 17, 1982, your employ-
ment with Kingsport Press has been terminated ef-
fective September 17, 1982, for conducting yourself
in a insubordinate manner during an employee
meeting by:
1. Disturbing the meeting being conducted by
Mr. Claude Akers and Jim Johnson on September
10, 1982, relative to layoffs and manning changes
that would take place on Monday, September 13,
1982.
2. Using abusive and derogatory language toward
Mr. Jim Johnson and other members of Kingsport
Press management.
3. By using profane and vulgar language in the
presence of female employees who were attending
the meeting. [R. Exh. 10(a).]
Poe testified he did not mention any threats in Ball's ter-
mination letter because he prepared the letter from the
notes he had made for Superintendent Johnson to read
from on the telephone when he discharged Ball. Poe also
stated no mention was made of the threats because Re-
spondent did not wish to place a stigma on Ball's future
employment efforts. After Ball's termination, Poe ar-
ranged for Ball to meet with Vice President of Oper-
ations Bowery and Vice President of Industrial Relations
Doty on September 23.
The meeting on September 23 was attended by Doty,
Bowery, Ball, and employee J. C. Russell. Bowery
opened the meeting by asking Ball to state his version of
what had transpired at the September 10 meeting. Ac-
cording to Doty and Bowery, Ball outlined what had
happened, and he was then asked if he made any threats
against Superintendent Johnson as he left the plant on
September 10. Doty testified Ball said he probably had
and probably threatened some other people also. Bowery
stated Ball said he might have threatened someone. Ball
denied ever making any such admissions to Bowery and
Doty. Employee Russell could not recall any threats
being mentioned at the meeting. In evaluating the testi-
mony with respect to the credibility conflict that exists
as to whether the subject matter of threats was discussed,
a The notes that were prepared by Poe and read from by Johnson
make no mention of any threats (R. Exh. 17).
I have weighed and considered certain facts. Respondent
had as of September 19 retained the services of a Pinker-
ton detective to guard the home of Superintendent John-
son during the dark hours. The detective guarded John-
son's home from September 19 until September 30 at a
cost of $2,114.12. Such action on the part of Respondent
might tend to indicate or suggest that the subject matter
of threats was discussed at the September 23 meeting in-
asmuch as Respondent had already retained the services
of a guard to secure the superintendent's home. Howev-
er, there is the fact that Respondent never, in writing nor
during its oral termination conversation, mentioned any
threats to Ball which might tend to indicate that the sub-
ject matter of threats was not discussed at the September
23 meeting. Therefore, in resolving this particular credi-
bility dispute, I do so on the basis of demeanor. I have
discussed Ball's overall demeanor elsewhere in this deci-
sion. I find that the subject of threats was not raised at
the September 23 meeting.
It is undisputed that Ball later had a meeting with Ex-
ecutive Vice President Montgomery in Montgomery's
office regarding his discharge. Ball testified, and his un-
disputed testimony is credited, that Montgomery never
mentioned any threats to him in his discussion with him
about the events surrounding his discharge.
E. Analysis, Discussion, and Conclusion
In making a disposition of the instant case, it is neces-
sary to determine if any conduct engaged in by Ball con-
stituted concerted activity that would be protected by
the Act. For Ball's activities to have been protected they
must have been of a concerted nature relating to terms
and conditions of employment. Ball clearly had filed
grievances that dealt with layoffs, cutbacks, and manning
of shifts, which are matters that pertain to conditions of
employment and are objectives which employees can
seek to improve through activities protected by the Act.
Ball, for example, had met with Executive Vice Presi-
dent McNeilly in 1980 and had discussed a number of
work-related problems common to all employees with
one of Ball's complaints relating to cross-training of em-
ployees being adopted by Respondent at that time. In
May 1981, Plant Manager Johnson, in responding to one
of Ball's grievances, stated he knew and understood how
reductions impacted on employees. Thus, it is clear that
management considered Ball's grievances to encompass
more employees than Ball. The concerted nature of
Ball's protected activities is again demonstrated by Vice
President of Operations Bowery's reply in June 1981 to a
joint grievance by Ball and fellow employee West re-
garding employees being cut back when Bowery re-
ferred to higher management for a decision that portion
of the joint grievance which related to whether employ-
ees who were cut back could purchase additional life in-
surance. Again, the concerns of Ball and his fellow em-
ployee West involved conditions of employment pertain-
ing to all employees. Ball's grievance in 1982, regarding
individuals doing the same job on the same type ma-
chines producing the same product but at different rates
of pay, was referred by management to a higher level of
management because it involved rates of pay at Respond-
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's different plants in the Kingsport, Tennessee area.
This again clearly demonstrates that Ball's grievances
pertained to concerns that involved policy changes with
respect to working conditions. Further, the grievance of
July 8 signed by Ball and 16 of his fellow employees per-
tained to scheduling in the casemaking department and
as such pertained to working conditions for all employ-
ees of the department and not just Ball alone.
It is quite clear from this record that Respondent, and
particularly Superintendent Johnson and Supervisor
Akers, considered Ball's concerted activities to make him
a "troublemaking" and "disgruntled" employee. Ball not
only filed grievances that addressed employee concerns
in general, as well as his own, but he also circulated peti-
tions seeking to improve working conditions. For exam-
ple, Ball circulated a petition requesting a meeting with
management regarding input into the wage evaluation
board; not only did Ball prepare the petition, but he was
the first to sign it. Upon management's unwillingness to
meet with the employees as a group, Ball filed a griev-
ance stating that such failure to meet with the employees
as a group violated Respondent's open-door policy. The
concerted nature of Ball's activities is further demon-
strated by the fact the he would meet with his fellow
employees in the breakroom for the purpose of drafting
grievances or petitions, and he would even have fellow
employees check spelling and grammar on the grievances
or petitions. Respondent's displeasure with Ball's con-
certed protected activities is in part demonstrated by the
fact that, in 1982 when he filed a grievance regarding a
reduction in the number of supervisors as a cost-saving
measure to Respondent, one of the supervisors stated
that Ball bitched all the time, was a troublemaker, and, if
it was not for him, the department would run a lot
smoother. In July 1982 when Ball met with Superintend-
ent Johnson regarding that same grievance, he was told
by Johnson that he was sick and tired of him and his ac-
tivities, and Johnson further told Ball he was the biggest
"damn" union agitator he had ever seen in his life. Su-
perintendent Johnson had told Ball earlier that he was
tired of his agitating and creating unrest in the depart-
ment. It is clear that the activities which Ball engaged in
were of a concerted protected nature, and it is further
clear that the activities of Ball caused discomfort to Re-
spondent, particularly to Superintendent Johnson.22
It is also clear that Ball recognized Respondent treated
him differently because of either his concerted or his
union activities. Ball complained to Personnel Superin-
tendent Poe about his treatment by Superintendent John-
son and stated to him that he did not know if Johnson
was holding the Union against him or if it was because
he had reversed Johnson in some of his grievances. The
evidence indicates that Ball's meeting with Poe in which
he complained about Johnson's conduct toward him was
somewhat of a last straw for Ball with Johnson. Johnson
thereafter on September 7 met with Ball, went over a
number of grievances that Ball had filed, which per-
tained to conditions of common concern to the employ-
ees of the department, and informed Ball that he was
2' Superintendent Johnson testified it took a large amount of time to
process and consider the grievances filed by Ball.
going to keep it up until one of them was going to have
to go. Three days later, Johnson's predictions came true,
and Ball was discharged. The evidence not only demon-
strates that Respondent was uncomfortable with and an-
noyed by the concerted protected activity of Ball, but
the evidence further establishes that Respondent had and
still harbored animus toward Ball for his prior union ac-
tivities. As discussed elsewhere in this decision, there can
be no question but that Respondent was aware of Ball's
union activities. It is, likewise, abundantly clear that Re-
spondent through its supervisors harbored animus
toward the Union. For examples, Supervisor Sanders
told Ball that he could cool down if he would take off
his "damn union hat." Employee Sproles rated certain
employees lower on their evalutions because of their past
union activities. And, although there was a lapse of time
between the union campaign and Ball's being discharged,
it is quite clear that Respondent still held Ball's union ac-
tivities against him. Superintendent Johnson, for example,
told Ball in July that he was the "biggest damn union ag-
itator" he had ever seen in his life. It is, likewise, clear
that Superintendent Johnson was annoyed by and con-
cerned with Ball's raising work-related problems with
him. It is clear that Ball was raising work-related prob-
lems on behalf of other employees because, as employee
Russell testified, Ball was the one with the courage and
nerve to speak up to management about work-related
problems.
On the basis of the above, I find the General Counsel
has established a prima facie showing sufficient to sup-
port an inference that Ball's protected activity was a mo-
tivating factor in the decision to discharge him. Wright
Line, 251 NLRB 1083 (1980); and NLRB v. Transporta-
tion Management Corp., 103 S. Ct 2496 (1983). Taking
the Wright Line analysis foward, it is incumbent on Re-
spondent to persuasively demonstrate that it would have
discharged Ball even in the absence of the protected con-
duct. This, I find, Respondent failed to do.
Respondent contends that Ball was discharged for two
reasons: his conduct at the September 10 meeting and his
threats against Superintendent Johnson. In the context of
the September 10 meeting, Ball's conduct was no better
or worse than any other employee's conduct at the meet-
ing. Profanity was used by Superintendent Johnson, for
example, when he told the employees regarding their
layoffs that "hell, its just a damn part of life," and that
they would have to get use to it. Employee Salyers used
the word "mother fucker" in addressing Johnson and in-
dicated to him that the employees were being treated
like "shit." No action was taken against Salyers. Like-
wise, employee Jaynes spoke up at the meeting and said,
"[T]hey're [management] shafting us again," yet no
action was taken against him. Ball's description of the sit-
uation as being a "friggin mess" and that management
was "inept" or "poor" was not, in my opinion, any more
offensive or vulgar than the language used by manage-
ment representatives or other employees at the meeting.
The one conclusion that is clear from all of this is simply
that Superintendent Johnson seized on Ball's comments
as a convenient excuse to rid himself of an employee
1160
KINGSPORT PRESS
whose concerted protected and union activities had
become a definite annoyance to him.
Threats as constituting a reason for Ball's discharge do
not withstand close scrutiny. I am persuaded that the
comment Ball made as he was being escorted from the
plant was too ambiguous to constitute a threat, and Re-
spondent simply seized on it as an afterthought. Threats
were not mentioned as a reason for Ball's termination
when Respondent advised him of his termination in a
telephone conversation, nor was there any mention of
threats in the letter Respondent sent to Ball advising him
of the reasons for his termination. Further, Respondent's
statement of position to the General Counsel dated Feb-
ruary 17, 1983 (R. Exh. 2(a)), made no mention of threats
as a reason for Ball's discharge. A further indication that
Respondent did not initially consider the comments of
Ball to be a threat is the fact that Respondent did not
hire a guard for Superintendent Johnson's home until 9
days after the conversation occurred. The earlier threat
that Respondent would rely on was simply a subterfuge
brought forward by Respondent in an attempt to bolster
its reasons for discharging Ball.
The record is clear that Ball was considered by Re-
spondent to be a troublemaker and a disgruntled employ-
ee because of his union activities and his repeated com-
plaints involving working conditions. The comments be-
tween Superintendent Johnson and Ball at the September
10 meeting provided Respondent with a convenient
excuse to rid itself of an employee whose union and pro-
tected activities had become a definite annoyance.
Accordingly, I find that by discharging Ball Respond-
ent violated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Kingsport Press is an employer engaged in com-
merce and operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging its employee James Earl Ball on
September 10, 1982, because of his membership in, and
activities on behalf of, the Union, and because he en-
gaged in concerted activities with other employees for
the purposes of collective bargaining and other mutual
aid and protection, Respondent violated Section 8(a)(1)
and (3) of the Act.
4. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
I have found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act. I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is
recommended that Respondent offer James Earl Ball un-
conditional reinstatement to his former position of em-
ployment or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or any other rights or privileges he previously en-
joyed. It is also recommended that Respondent make
James Earl Ball whole for any loss of pay which he may
have suffered as a result of his unlawful discharge. Back-
pay for Ball, and interest thereon, shall be computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962). It is further recommended that Respondent ex-
punge from its records any reference to its discharge of
Ball and that Respondent notify Ball in writing that this
has been done and that evidence of his unlawful dis-
charge will not be used as a basis for future personnel
action against him. See Sterling Sugars, 261 NLRB 472
(1982). Finally, it is recommended that Respondent be
ordered to post a notice to employees attached hereto as
"Appendix" for a period of 60 consecutive days in order
that employees may be apprised of their rights under the
Act and Respondent's obligation to remedy its unfair
labor practices.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended 2 3
ORDER
The Respondent, Kingsport Press, Kingsport, Tennes-
see, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging and thereafter failing and refusing to
reinstate its employees because of their membership in,
or activities on behalf of, the Union and because they
have engaged in concerted protected activities with
other employees for the purposes of collective bargain-
ing and other mutual aid and protection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act.
(a) Offer James Earl Ball immediate and full reinstate-
ment to his former position of employment or, if his
former position of employment no longer exists, to a sub-
stantially equivalent position of employment, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may
have suffered by reason of the discrimination against him
in the manner set forth in the section of this decision en-
titled "The Remedy."
(b) Expunge from its files any reference to the Septem-
ber 1982 discharge of James Earl ball, and notify him in
writing that this has been done, and that evidence of his
unlawful discharge will not be used as a basis for future
personnel action against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
'S If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of the recommended Order.
(d) Post at its Kingsport, Tennessee facilities copies of
the attached notice marked "Appendix." 24 Copies of the
notice, on forms provided by the Regional Director for
"4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
1162